Roskomnadzor is the Russian "telecommunications regulator" or "watchdog," but it could just as easily be described as the Russian internet censor, because that appears to be a large part of its role in the country. In the past, we've written about Roskomnadzor blocking all of Wikipedia over a single reference to hashish (really) and also a plan to block all of CloudFlare because the company made it difficult for Russia's internet censorship plans to work. Earlier this month, Roskomnadzor made news for blacklisting a Vice article, claiming that it would encourage shoplifting.
So, who better to support such a censorship regime than... Hollywood! The MPAA has now proudly signed an agreement with Roskomnadzor to cooperate on protecting copyright online. The linked article is unfortunately horribly written. The title implies that the MPAA represents the government of the United States (while sometimes true in practice, that's not how it's supposed to work...) and then provides frightfully few details on what the agreement really is), beyond "protect copyright!"
The memorandum reflects the principles and rules of self-regulation in the interaction of rights holders with internet facilities, essentially protecting copyright on the internet.
That feels like something the reporter pulled straight from a press release and didn't bother to check what it meant. Still, the MPAA getting into bed with the Russian state internet censor should raise some pretty serious questions. The Russian government has, somewhat infamously, been known to use copyright law to intimidate and silence government critics. The government also has used SOPA-like laws to encourage spying on users.
And yet, this is the same MPAA that claims that one of its core principles is preserving free speech. Perhaps they just mean in the US? Those in Russia are on their own, apparently, because the MPAA is on the side of the government censor. Or, perhaps the reality is that the MPAA has no problem with censorship anywhere, so long as it's censorship on behalf of the MPAA.
You may have heard recently that after switching many domains, a few weeks back ThePirateBay returned to its original thepiratebay.org domain. It's basically an ongoing game of wac-a-mole, where the entertainment industry freaks out and scares registrars into taking back whatever domain and TPB just moves on. It's unclear what good this does for anyone, but it keeps happening. And with the return to .org, it appears the entertainment industry has basically lots its mind. First, it had one of its lobbying front groups, the Copyright Alliance write a hellishly misleading post attacking Public Interest Registry (PIR), the organization that currently runs the .org top level domain.
It is shocking that a domain name registry in the United States – one that is dedicated to “the public interest” – is allowing a blatantly illegal site to have a home on the .org domain. This is especially disturbing given that the operators of The Pirate Bay have been found guilty of criminal copyright infringement, The Pirate Bay domain names have been seized or suspended around the globe, and even its co-founder, Peter Sunde, has walked away from it. Despite all this, The Pirate Bay seems to have found a sanctuary here in the United States by PIR.
As far as I can tell, there is no court ruling in the US that says any of the above is true. While it's true that a few former operators were found guilty, they served their time in prison and as far as I know, none are involved in the current site. And, as has been pointed out over and over again, the site is basically a search engine. Accusing it of "criminal infringement" makes no sense. Furthermore, while the Copyright Alliance fought hard to get SOPA passed, it failed. US law does not currently require registrars or registries to remove domains just because the Copyright Alliance or the RIAA dislike a site. Sorry: you didn't get the law you wanted, so don't pretend you did.
Torrenfreak further points out that while the Copyright Alliance points to PIR's abuse policy, it conveniently ignores that said policy does not apply to intellectual property disputes, which require actual due process.
Meanwhile, as the Copyright Alliance was whining publicly, the RIAA was sending a letter to PIR basically saying the same thing, and asking it to take down the .org domain. The letter lists other countries where various TPB domains have been blocked, and then notes:
With respect to the U.S, please remember that the infringing nature of The Pirate Bay has
been noted in each of the Notorious Market Reports issued by the USTR for the past several
years. Per the Google copyright transparency report, over 400,000 infringements have been
identified on www.thepiratebay.org, with over 50,000 since The Pirate Bay moved back to its
.org domain. This is in addition to the over 3,000,000 infringements identified on its previous
alter ego, www.thepiratebay.se. It is well known that The Pirate Bay does not take action in
response to notices. In addition, there have been numerous reports recently of malware and other
abuse occurring via The Pirate Bay at its various domains.
Of course, it's a bit weird to use Google's transparency report as part of its argument, since that just details accusations, rather than actual evidence of infringement (and, again, I don't know how many times this needs to be pointed out, but TPB doesn't host any content). And, again, the RIAA supported SOPA, but it lost. It should stop pretending it won.
PIR, in turn, forwarded the letter on to TPB's registrar, EasyDNS. EasyDNS then contacted TPB to discuss the possible policy violations, and got back reasonable answers that it was not actually in violation. On the question of copyright, TPB claimed that it now abides by the DMCA:
TPB is DMCA compliant and if TPB receive any DMCA complaints from
RIAA they will be investigated and removed if found to be valid. We
have not revived[sic] any DMCA complaints from RIAA at all so far this
Some may point out that TPB, in the past, regularly ignored (or mocked) the DMCA, noting that as a non-US company, it was not subject to US laws. Whether or not TPB still ignores DMCA takedowns could, arguably, impact if it's abiding by registrar policies, but without a court weighing in, it's difficult to see how a registar should take the RIAA's word for it without more evidence.
The RIAA's letter also notes TPB distributing malware, and so EasyDNS asked about that as well, to see if it violated its terms of service, and again TPB insists that the RIAA is being misleading:
As with every site that are displaying 3rd party advertising trough
external ad-networks, sometime bad and corrupt ads slips by, it
happens to everyone, here is an example:
As soon as it is discovered/detected on TPB, the ads will be taken
down, or the entire ad-tag from where the malware comes, until the
issue is resolved. Usually with the help of google webmaster-tools
to track down the exact source of the malware.
It has happened twice during 2016, both times when adding new ad-
networks, They were taken down directly when detected.
Based on that, EasyDNS properly notes that it has no legitimate basis to takedown TPB's .org domain.
At this time we find no violation of our AUP. Absent either a specific
proceeding pursuant to our accreditation as a .ORG registrar or a legal
finding in a competent jurisdiction to the Province of Ontario, there is
nothing for us to do.
easyDNS will of course always: comply with our contractual obligations -
both to the registries we operate under and to our customers; comply
with the laws under which govern our jurisdiction (the Province of
Ontario, Canada) and enforce our own Acceptable Use Policy.
Thank you for bringing this matter to our attention.
In a blog post, EasyDNS President Mark Jeftovic explains the due process rationale here:
Our opinion in these matters continues unchanged. As a Registrar or as a DNS provider unless there is a clear violation of our AUP or net abuse (which we are competent to detect), taking action against domains based on content or at the behest of third-parties, regardless of their altruism or noble intentions, amounts to having us adjudicate international law. It's not reasonable to expect us to do that and you don't want your domain registrar doing that.
This is the key point. Whatever you believe about TPB -- and many people see it as being horribly illegal, obviously -- due process has to mean something. The RIAA and its friends should not just be able to point to something and say "illegal, kill it!" because they have a fairly long history of being totally wrong about such things. In the past, they've argued that nearly every innovation is illegal, from player pianos to radio to cable TV to the photocopier to the VCR to the DVR to the MP3 player and to YouTube. And over and over they've been wrong about those things. And that's why due process is important, and why it's good to see EasyDNS (and PIR) recognizing this.
Jeftovic, by the way, separately highlights that no one should think of EasyDNS as being "friendly" to bittorrent site operators, as he expects it won't be long until there will be sufficient due process to take down those sites:
We should also mention our Open Letter to Bit Torrent operators, wherein we predict a near-future where due process across borders catches up with technology and when that happens it will be relatively quick, easy and painless for a law enforcement agency in one country (i.e. Sweden) to have the requisite order issued in another country (like Canada, eh) and cause a domain that appears to be flagrantly violating copyright and freeriding on content creators efforts to be shut down.
Ahead of that day, if I were a filesharing site operator I'd be using my time wisely in concentrating my efforts on legitimizing my operations. This would include negotiating blanket licensing agreements with mechanical rights agencies.
In other words, contrary to what some will claim, this is not EasyDNS standing up for torrent sites. It's EasyDNS standing up for basic due process. You'd think that the Copyright Alliance and the RIAA would support due process, but apparently that's too difficult.
Congress has mostly stayed away from any attempt at copyright reform since the great SOPA blackout of 2012, afraid that anything will set off the public again. However, in 2013, Copyright Register Maria Pallante called on Congress to create the "next great copyright act" designed to update copyright for the 21st century. The House Judiciary Committee has been holding hearings and roundtables every few months since then, some of which have been more encouraging than others.
Copyright law is clearly broken and a true fix for the 21st century would be welcome. But what are the chances that Congress would actually do a good job, rather than make it worse? Well, we may soon find out. Yesterday, Rep. Bob Goodlatte put out a statement and a video claiming that they're finally ready to start releasing some proposals:
Goodlatte lists out a bunch of things that have been discussed, and then notes that he'll be focused initially on releasing proposals where he believes there is some "consensus":
In the weeks ahead, we will identify areas where there is a likelihood of potential consensus and circulate outlines of potential reforms in those areas. Then we will convene stakeholders for further work on these potential reforms.
And you have my personal commitment that as the review shifts to more focused work on potential reforms, the process will be transparent and the Committee will continue to ensure that all interested parties have the opportunity to weigh in on issues of concern to them. Our copyright system deserves no less.
The way that's put obviously sounds better than the way things have been done in the past, where the legacy industry basically wrote the bills for Congress, and our elected officials just put their names on it. But I'm still concerned with the framing of this whole thing. Goodlatte's talk continues to falsely suggest that copyright policy is about copyright holders vs. the public:
...it is critical that Congress understand the overall impact of any changes in copyright law before proceeding with formally introduced legislation. It is also clear that neither a solely copyright owner focused bill, nor a copyright user focused bill, could be enacted by Congress today, nor should they be.
But, again, as we've been explaining for years, thinking of copyright in such zero sum terms is the wrong way to go about it. A proper copyright system, focused on "promoting the progress of science" shouldn't put the best interests of either party at risk. These interests should be aligned. The public benefit of copyright should be to encourage creators to create and for that content to spread and be experienced. We should be looking at what kinds of policies best lead to that outcome. Instead, because of past history and the mental framework that the Judiciary Committee has had since the beginning, it seems that they want to set this up as a fight between Hollywood (representing "copyright holders") and the tech industry (which they're using as a weak and misleading proxy for "the public.") The actual public is not involved. Nor are many actual creators.
There are, of course, cynical political reasons for doing this. Congress learned years ago that if you want to get a big pile of donations, the best thing to do is to hint at a bill that would put two large industry in conflict with one another. Then both feel compelled to fund politicians campaign warchests.
But that leads to bad policy. It leads to policy based on the interests of funders and industry, rather than the public. Again, the purpose of copyright law is to benefit the public by creating incentives for content creators. The interests of content creators and the public should (and absolutely could) be aligned in all of this. Let's create systems that encourage the creation and distribution of content, without treating the public as criminals.
Let's hope that's actually what Goodlatte and the Judiciary Committee have in mind, but from the framing he has used so far, I'm concerned that what comes out of this is likely to be something else.
One of the reasons why many people are opposed to various "site blocking" laws, is that inevitably such things get abused. And while the US successfully stopped SOPA's site blocking plan, plenty of other countries went ahead and implemented something similar -- including, apparently, Portugal. Yet, earlier today, reports came out that the Portuguese site-blocking system was now blocking the website of an American video game development shop called Carbon Games.
Now, it does appear that someone just screwed up here. It's not happening on all Portuguese connections, but it did happen on multiple ISPs according to the initial report on Reddit. Also, it seems they only blocked the version of the website where the URL starts with "www." Get rid of that and people could access the website without a problem -- again adding to the likelihood of a general screwup. Oh yeah, also, it looks like if you use any other DNS provider, such as Google's DNS, you'd avoid the blocks (another reason why blocking at the DNS level is kind of stupid).
Either way, even if it was just a "mistake," the fact that it happened at all should be a huge concern. When entire websites can be blocked without any real review or due process, it opens the door to much more serious and widespread censorship. It's again troubling how quickly many in the copyright realm ignore the nature of this slippery slope.
Earlier this year, we were fairly concerned when a court ruled in favor of the RIAA in saying that Cloudflare had to automagically block any site that mentioned "Grooveshark" in the URL. Thankfully the court walked that back a bit, saying that the RIAA still had to inform Cloudflare of specific sites, but it still seemed problematic. The issue involved a few "fake" Grooveshark clones (sites pretending to be Grooveshark clones, but which actually were not). The RIAA can go after those sites directly, but the court's willingness to drag in a third party like Cloudflare was immediately problematic. That was a key part of SOPA -- the law that did not pass, yet judges keep pretending it did anyway.
Not surprisingly, whoever operated these sites ignored the lawsuit, leading to a default judgment in the RIAA's favor. That's to be expected when the defendants don't show up. But what's troubling is that the court keeps the injunction for Cloudflare in effect, basically letting the RIAA just designate any particular site as a Grooveshark clone, which Cloudflare then needs to dump within 48 hours. Even worse, if CloudFlare simply comes across a possible violation of the order by a customer, it has to proactively kick the site off its service. From the order:
IT IS FURTHER ORDERED that, in accordance with the terms of the Court's June 3, 2015 Order and its July 9, 2015 Order modifying same, CloudFlare is bound by this Order. Upon receipt notice from Plaintiffs or if CloudFlare otherwise has knowledge of an infringement or other violation of the Permanent Injunction on the part of one of its customers, CloudFlare shall cease providing its services to that customer as soon as possible, but no later than 48 hours after receiving such notice or obtaining such knowledge. CloudFlare may expeditiously notify its customers of any impending termination of their accounts as a result of this and related Court Orders.
This raises some fairly serious due process concerns. First off, Cloudflare certainly shouldn't be put in the position of determining what is and what is not infringing or violating this Court Order (in a case where it's not even a party). That puts tremendous burden on an unrelated party and it's a burden that almost certainly will pressure CloudFlare to kick sites off its service with nothing even close to resembling due process. Similarly it provides tremendous power to the RIAA to seriously damage website it doesn't like if they happen to use CloudFlare -- again with little to no due process.
That's not how the law is supposed to work. If there is infringing content, the DMCA allows the RIAA to file takedown notices, which have a clear process for notification and takedown of the infringing works. But what this order allows for is a vague standard, based on no clear law, to completely cut off services for a website, with no due process, no standard notification system and no clear appeals process.
As a default ruling in a district court this has basically no precedential value, but is quite worrisome nonetheless. Even if you believe that sites setting themselves up as Grooveshark clones deserve to be taken down, you should at least support basic due process before they can be killed off, right?
Last year, when the Sony emails leaked, and it was revealed that the MPAA was still totally focused on bringing SOPA back through alternative means, one of the strategies explored was getting the International Trade Commission (the ITC) to set up a sort of secret SOPA. The ITC is an already problematic government agency that is already widely abused by patent holders. Basically, you can ask the ITC to "block" some sort of "illegal foreign competition." And for patent holders, this has meant going to the ITC and claiming that a foreign firm (or a domestic firm that is importing products) is violating its patents, and thus the ITC should issue an injunction blocking any such products from entering the US at its borders. This is already troublesome in the patent context, because the ITC process is entirely separate from either the USPTO's review of patents or the federal courts -- and actually has different rules. So even if a court might decide that a patent is invalid under existing rules, the ITC may have already started blocking the import of products, claiming patent infringement. It basically allowed patent holders to get two bites at the apple (sometimes, quite literally at Apple).
The MPAA's theory was that if the ITC can block "infringing products" at the border, why can't it basically do the same thing for "infringing content." The goal of the strategy -- which even the MPAA's legal experts admitted was a long shot -- was to find a key case, in which "digital goods" of some sort went before the ITC, and see if it could get a ruling in its favor. It found that case in the ClearCorrect case, in which the company ClearCorrect faced off against the ITC over its 3D printing of clear plastic braces, custom-designed for each patients' teeth. While another company holds patents on a similar process, ClearCorrect tried to get around this by doing the computer work in Pakistan, and then sending the completed digital model back to the US to be printed. Thus, ClearCorrect argued, it was not violating the patents in the US and was just getting a digital file. The ITC ruled against ClearCorrect, and the company appealed the ITC's ruling out into the federal court system where the case was heard by the appeals court for the Federal Circuit (CAFC). The MPAA weighed in supporting the ITC, hoping to give teeth to the idea that the ITC can block "digital goods" at the border for "infringement." Thankfully, the good folks at Public Knowledge weighed in on the other side, noting what a massive and dangerous expansion of power this would be for the ITC in a very digital world.
Thankfully, today, the CAFC sided with ClearCorrect and against the ITC (and the MPAA), noting that the ITC has no jurisdiction to issue injunctions on digital products. The decision was written by CAFC chief judge, Sharon Prost (who has really shaken up CAFC in a good way since taking over last year). Prost correctly notes that the ITC's original decision was a massive, unauthorized expansion of the ITC's jurisdiction, without the necessary Congressional approval. In short:
The Commission’s decision to expand the scope of its
jurisdiction to include electronic transmissions of digital
data runs counter to the “unambiguously expressed intent
Prost notes that the ITC's charter allows it to issue injunctions to block the import of "articles" at the border, and "it is clear that 'articles' means 'material things,' whether when looking to the literal text or when read in context 'with a view to the term's place in the overall statutory scheme.'"
The judge notes that, while digital content has some sort of physical aspects, that does not make it the same thing as physical property:
We recognize, of course, that electronic transmissions
have some physical properties—for example an electron’s
invariant mass is a known quantity—but commonsense
dictates that there is a fundamental difference between
electronic transmissions and “material things.”
Going into more detail, Prost basically just reads the law:
The Commission’s jurisdiction to remedy unfair international
trade practices is limited to “unfair acts” involving
the importation of “articles.” 19 U.S.C. § 1337(a).
Thus, when there is no importation of “articles” there can
be no unfair act, and there is nothing for the Commission
to remedy. Here, the only purported “article” found to
have been imported was digital data that was transferred
electronically, i.e., not digital data on a physical medium
such as a compact disk or thumb drive. The Commission’s
April 3, 2014, majority opinion devotes twenty-one pages
of analysis to the question of whether “articles” encompasses
digital data and ultimately concludes that it does.
But Judge Prost notes that the ITC is just wrong about that. And then starts digging in deeper and deeper about how ridiculous the ITC was in trying to make this massive landgrab. She spends pages citing the dictionary (actually, multiple dictionaries) as to why the ITC is just wrong. And then moves on to point out that it's pretty clear what Congress meant and the ITC seems to have just decided for itself to try to expand its powers. It's a pretty thorough smackdown. After making it clear that the ITC clearly misread the statute, Prost then goes on (even though she doesn't have to) to smack down the ITC's interpretation as "unreasonable." Again, she returns to the dictionary and notes that it appears the ITC looked at it, and then decided to pretend it said something different.
The Commission’s analysis of dictionary definitions
evidences the irrationality of the Commission’s interpretation
of the term “article.” While the Commission ostensibly
analyzes various dictionary definitions, it fails to
adopt a definition consistent with any of the definitions it
references. For example, as discussed in the prior section,
the Commission turns to the 1924 edition of the Webster’s
dictionary for the definition of “article,” but rather than
adopt that definition it concludes that it will “embrace a
broader meaning that describes something that is traded
in commerce.” ... In other words,
it generates its own definition, unrelated to the definition
provided by the dictionary.
Furthermore, the Commission inexplicably cites to
several dictionaries in two footnotes that support “articles”
being defined as “material things,” but provides no
analysis as to why these dictionaries should not be considered.
Even worse, she notes that the ITC not only misread the legislative history on the Tariff Act, but appears to have simply cut out a key phrase that undermines its argument. Specifically:
The Commission’s Opinion cites the Senate
Report, S. Rep. 67-595, as authority for this conclusion
and then quotes it as follows:
The provision relating to unfair methods of competition
is broad enough to prevent every type and
form of unfair practice and is, therefore, a more
adequate protection to American industry than
any antidumping statute the country ever had.
However, the actual quote reads as follows:
The provision relating to unfair methods of competition
in the importation of goods is broad
enough to prevent every type and form of unfair
practice and is, therefore, a more adequate protection
to American industry than any antidumping
statute the country ever had.
.... The Commission’s
omission of the phrase, “in the importation of
goods” is highly misleading; not only was a key portion of
the quote omitted, but it was omitted without any indication
that there had been a deletion. Furthermore, while
we may agree that the quote, as incorrectly stated by the
Commission, would indicate a broad authority for the
Commission, the phrase “in the importation of goods”
clearly limits the Commission’s authority. And as we
discussed above, it limits it in such a way as to exclude
non-material things. Because the Commission uses this
misquote as its main evidence that the purpose of the act
was to cover all trade, independent of what form it takes,
the Commission’s conclusion regarding the purpose of the
Act is unreasonable.
Yeah, simply deleting the phrase that undermines your argument, without even putting in some "..." or something is pretty bad.
There's a concurring opinion from Judge Kathleen O'Malley that is also a good read, noting how ridiculous it is that the ITC magically thinks it has the right to regulate pretty much the entire internet, without any actual expertise or mandate from Congress:
The Commission has concluded that it has jurisdiction
over all incoming international Internet data transmissions.
It reaches this conclusion despite never having
purported to regulate Internet transmissions in the past,
despite no reference to data transmissions in the statute
under which it acts, despite an absence of expertise in
dealing with such transmissions, and despite the many
competing policy concerns implicated in any attempt to
regulate Internet transmissions. The Internet is “arguably
the most important innovation in communications in a
generation.”... If Congress intended for the Commission
to regulate one of the most important aspects of modernday
life, Congress surely would have said so expressly.....
Although the Commission’s jurisdiction over imported
physical goods is undeniable, it is very unlikely that
Congress would have delegated the regulation of the
Internet to the Commission, which has no expertise in
developing nuanced rules to ensure the Internet remains
an open platform for all.... Instead, the responsibility lies with Congress to decide
how best to address these new developments in technology.....
Indeed, Congress has enacted laws and debated bills
whose intent is to balance an interest in open access to
the Internet and the need to regulate potential abusers.... Not once in
these debates has Congress said or implied that it need
not concern itself with these issues because it had already
delegated the authority to do so to the Commission.
Good stuff. O'Malley is actually arguing that the majority decision doesn't even need to go through the whole "Chevron" test it does, about interpreting the law because it's so blatantly obvious that the ITC has no authority here, but if it must go through with that interpretation test, then she agrees with Judge Prost that the ITC is just wrong.
There is a dissent, from Judge Pauline Newman who basically says "well, the ITC regulates international commerce, and commerce today is digital, so it's all good."
The purpose of Section 337 to provide a facilitated
remedy against infringing imports is beyond dispute. The
panel majority’s removal of this remedy from a preeminent
form of today’s technology is a dramatic withdrawal
of existing rights, devoid of statutory support and
of far-reaching impact. The majority’s ruling, that digital
goods cannot be excluded under Section 337 because
digital goods are “intangible,” is incorrect.
Given all that, don't be surprised to see an attempt to appeal this to the Supreme Court (or en banc for CAFC). But, at least for now this is a good and important decision that wipes out one of the MPAA's secret plans to bring SOPA in through the back door. Kudos to Public Knowledge for focusing in on this case and making the case for keeping the internet open.
On Tuesday, the House Judiciary Committee held a hearing on what sounds like a boring topic: "International Data Flows: Promoting Digital Trade in the 21st Century." However, as we've discussed, this seemingly boring topic can have a profound impact on how the internet functions, and whether it remains a global platform for free expression -- or becomes a fragmented system used for widespread censorship, surveillance and control. In other words this is important.
The hearing was mostly pretty bland (as Congressional hearings tend to be), but at one point, Robert Atkinson, the President of the Information Technology and Innovation Foundation (ITIF) argued that the US should be encouraging global censorship if it's for sites like The Pirate Bay. You can watch the portion of the video below (it should start at the right moment, but if not, jump to 1 hour, 27 minutes and 40 seconds):
It starts with Rep. Jerry Nadler reading a question someone else clearly prepared for him, directed at Atkinson about how to handle situations in which different countries have different laws regarding free speech and content, and what that should mean for "data flows" across borders. In short, this is a question about "what should we do with countries who want to censor the internet -- and should we allow that sort of thing." Atkinson's answer is a bit rambling, but he basically starts off by saying that we'll never agree with some other countries on free speech and such... but then says no matter what, one thing we should all agree on is that it's good to censor sites like the Pirate Bay and the US should encourage such blatant censorship worldwide:
I think it's an untenable project that we would end up with "global harmony" on every single rule with regard to the internet. We're not going to be able to do that. And we're certainly not going to be able to do that with free speech. There are certain countries, particularly more traditional, religious countries that find pornography objectionable. We don't with our... or at least we have free speech, we may find it objectionable, but we allow it. We're not going to agree on that. And for certain things like that, countries are going to do that and I think we just have to be okay with that.
Another example is in Germany, you're not allowed to download a copy of Mein Kampf. In the US, we can. Again, we're not going to change the German view. I don't know if they're right or wrong. It doesn't make any difference.
Where we can and should, though, take action, is there are some things that are clearly illegal under the WTO framework for intellectual property, for example piracy and intellectual property theft can be prosecuted. So when countries engage in steps, for example, to block certain websites that are clear piracy sites -- like, for example, a web or a domain called "the pirate bay" that should be quite... you know we should be encouraging that. That's quite different than blocking, say, Facebook or something like that, or blocking some site just because you don't want competition.
Where to start? Well, how about I let Atkinson debunk Atkinson. In the question immediately preceding this one about blocking websites, Nadler had asked Atkinson about backdooring encryption. And there, Atkinson gave a much better answer, noting that it was a terrible idea (he's right!), but then notes:
If they try to mandate that, they're setting a dangerous precedent, for example, by letting the Chinese government do the exact same thing.
Uh. Yeah. And having the US government "encourage" censoring websites also sets a dangerous precedent by letting the Chinese government (and lots of other governments) point to the US as doing the same thing they do. But, as Atkinson and other copyright system supporters will undoubtedly scream, "that's different -- this is about copyright, not censorship." Yeah, well, you're not paying attention if you don't recognize how copyright is used for political censorship as well. Remember how Russia was using copyright law to intimidate its critics? What you might not remember is that when China first set up its massive online censorship system, known as the Great Firewall of China, one of its key justifications to the outside world was that it would be used to stop piracy online. And, of course, during the big SOPA/PIPA fight, the Chinese were laughing at those of us in America who whined about their Great Firewall, while we were debating a proposal to set up an identical system.
Of course, it's no surprise that Atkinson is making this argument. The organization he runs, ITIF, is frequently credited with first proposing the ideas behind SOPA in a white paper that came out right before the SOPA push. And ITIF famously argued in favor of SOPA by pointing to authoritarian countries who censor the internet as proof that SOPA wasn't that harmful. Yes, Atkinson's own firm suggested that the US should emulate China, Saudi Arabia, Iran, Syria and a number of other countries in censoring the internet. But, you know, "just for copyright."
And this doesn't even get to the issue of Atkinson's assured statement that certain sites are "clear piracy sites." Except, as we've noted over and over again, almost every great innovation around content delivery was decried as a "tool for piracy" originally. Radio, TV, cable TV, the photocopier, the VCR, the DVR, the mp3 player and YouTube and similar sites were all attacked as piracy tools originally. And yet every one of them actually opened up new and important arenas for content creation, distribution and monetization. What looks like a piracy tool in the early days often becomes a massive and legitimate business opportunity soon after (again: it was just four years after the MPAA's Jack Valenti declared VCR's the "Boston Strangler" to the film industry that home video revenues surpassed box office revenues).
Either way, what Atkinson was saying here is both shocking and dangerous. He's outright advocating a censorship regime based on his belief of what is and is not appropriate -- and suggesting that the US should "encourage" other countries to censor the web without legal due process, without consideration for innovation, because he has decided which sites are bad. At the end he says that blocking The Pirate Bay is not like blocking Facebook. Yet, there are many people who argue that Facebook is, similarly, a giant piracy site. Whose definition is right in that context? And the same question can be asked about YouTube. Viacom sued YouTube claiming that it was just as bad as the Pirate Bay. Would Atkinson support countries blocking all access to YouTube "under the WTO"?
There is a rather astounding level of cognitive dissonance that some people, such as Atkinson have, around issues related to copyright and censorship. They assume, incorrectly, that copyright is some magical fairy tale world where it's never used for censorship, and thus it's fine to block "bad sites" where people like Atkinson get to decide what is and what is not bad. But all he's doing is encouraging internet censorship, and giving massive amounts of cover to authoritarian regimes who want to censor the internet for all sorts of reasons. They can easily take Atkinson's claims that we must encourage censorship over copyright and either abuse copyright for that purpose, or even just twist it slightly to note "well, blocking infringement is important to the US, and we feel the same way about political unrest."
Atkinson's ITIF lost its battle for SOPA nearly four years ago. It shouldn't try to reintroduce the idea of a global platform for internet censorship today.
from the seems-like-an-issue-that-ought-to-be-looked-at dept
As you may have heard, earlier this week, the RIAA sued Aurous and its creator Andrew Sampson for creating an apparently easy to use software front-end for streaming music from some unauthorized repositories (mostly in Russia). For his part, Sampson insists that he just used some publicly available APIs and created a nice front end, without doing anything that is directly infringing himself. While I can understand those claims, the existing details and case law suggest that Sampson isn't going to fare very well in court. Given Sampson's own public statements, at the very least, the RIAA has made a fairly compelling case under the Grokster "inducement" theory. You can -- as I do -- think that "inducement" to copyright infringement is a ridiculous thing to be considered against the law, but that doesn't change the fact that it is, indeed, the law. Unless there are some as yet unknown details here, Sampson is likely going to have a hard time getting around the inducement claims.
So given all that, I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn't mean that parts of the lawsuit aren't concerning. Of particular concern is what the RIAA is asking for in the lawsuit -- and what the judge appears to have granted. Specifically, in the lawsuit itself, the RIAA doesn't just ask for Aurous to be shut down, but also asks for all sorts of third parties to be restrained as well. Here's the list of things the RIAA asks the court to issue an order for:
(A) enjoining Defendants and all third parties with notice of the Order,
including any Web hosts, domain name registrars, domain name registries, or their
administrators, from facilitating access to any or all domain names, URLs, and websites
(including, without limitation, www.aurous.me) through which Defendants infringe
(B) requiring domain name registries and/or registrars holding or
listing Defendants’ domain names and websites (including, without limitation,
www.aurous.me) through which Defendants infringe Plaintiffs’ copyrights to: (a) disable
www.aurous.me and any related domain names specified by Plaintiffs through a registry
hold or otherwise, and to make them inactive and non-transferable, and (b) transfer
Defendants’ domain names to a registrar to be appointed by Plaintiffs to re-register the
domain names in Plaintiffs’ names and under Plaintiffs’ ownership;
(C) enjoining all third parties with notice of the Order from
maintaining, operating, or providing advertising, financial, technical, or other support to
Defendants and any other domain names, URLs or websites through which Defendants
infringe Plaintiffs’ copyrights, including without limitation www.aurous.me; and
(D) enjoining all third-party distributors of applications, toolbars, or
similar software with notice of the Order from distributing any applications, toolbars, or
similar software applications that interoperate with any domain names, URLs or websites
through which Defendants infringe Plaintiffs’ copyrights, including without limitation
This is problematic, to say the least. Remember, SOPA did not become law, and yet the main part of the original SOPA bill was to create just this sort of remedy, whereby copyright providers could get a court order to get third party companies to be barred from doing any business at all with a site deemed a "pirate" site. Yet, SOPA did not become the law and the RIAA is just pretending it is law in asking the court to block all of those third parties from providing any services to the site.
The RIAA also submitted a desired temporary restraining order, which the judge effectively rubber stamped, granting everything the RIAA asked for -- but rejecting the RIAA's request not to have to put up a bond over this. Instead, the judge ordered the RIAA to put up a tiny $5,000 bond in case a party was "wrongfully" enjoined. That temporary restraining order seems pretty broad as well:
... Defendants and their officers, agents, servants, employees,
attorneys, and all persons who in active concert or participation with each or any of them, or who
are aiding and abetting their conduct, are hereby RESTRAINED and ENJOINED until further
Order of this Court from infringing, or causing, enabling, facilitating, encouraging, promoting
and inducing or participating in the infringement of, any of Plaintiffs’ copyrights protected by
the Copyright Act, whether now in existence or hereafter created...
Of course, one might question what qualifies as "all persons who are in active concert or participation," but it still has the potential to be overbroad, and to pull in all sorts of third parties who are doing nothing more than providing basic services.
Again, none of this is to say that Aurous is legal or shouldn't be facing this lawsuit. But pulling in third parties here was exactly the kind of thing that Congress chose not to do when it did not pass SOPA, in the wake of overwhelming public sentiment against allowing these sorts of remedies.
So why is the RIAA simply acting like it got what it wanted with SOPA and asking the court to proceed accordingly?
The MPAA has been working on a number of tricks to find a SOPA through the backdoor in the last few months -- more on some of the many attempts coming soon -- but in one attempt, it's suddenly walking away. A few weeks ago, all of the major movie studios filed a lawsuit over the website MovieTube (actually a series of websites). While it may well be that MovieTube was involved in copyright infringement (and thus a lawsuit may be perfectly appropriate), the concerning part was that, as a part of the lawsuit, the studios were demanding a remedy that is not available by law: that anyone who provides any kind of service to MovieTube be forced to stop via a court injunction. This was the kind of tool that was a part of SOPA, which (you may recall) never became law. Among the requests in the lawsuit:
That the Registries and/or Registrars be required to transfer the domain names
associated with Defendants’ MovieTube Websites, or any subset of these domain names
specified by Plaintiffs, to a registrar to be appointed by Plaintiffs to re-register the domain names
in respective Plaintiffs’ names and under Plaintiffs’ respective ownership.
That content delivery networks and domain name server systems be required to
cease providing services to the MovieTube Websites and/or domains identified with the
MovieTube Websites and disable any access to caches they maintain for the MovieTube
Websites and destroy any caches they maintain for the MovieTube Websites.
That third parties providing services used in connection with any of the
MovieTube Websites and/or domain names for MovieTube Websites, including without
limitation, web hosting providers, cloud services providers, digital advertising service providers,
search-based online advertising services (such as through paid inclusion, paid search results,
sponsored search results, sponsored links, and Internet keyword advertising), domain name
registration privacy protection services, providers of social media services (e.g., Facebook and
Twitter), and user generated and online content services (e.g., YouTube, Flickr and Tumblr) be
required to cease or disable providing such services to (i) Defendants in relation to Infringing
Copies or infringement of Plaintiffs’ Marks; and/or (ii) any and all of the MovieTube
A few days later, the good folks at EFF reminded everyone that SOPA did not pass, and this attempt to require a SOPA-level block is not actually what the law allows. Of course, as we noted soon after the SOPA fight, it appeared that some courts were pretending SOPA did pass, mainly in a variety of lawsuits involving counterfeit goods (rather than copyright infringement). And the movie studios rely on that in their more detailed argument in favor of this broad censorship order on third parties who aren't even a part of this case:
Courts have granted similar interim relief directed to third-party service providers in
cases with similar facts. The first such case, The North Face Apparel Corp. v. Fujian Sharing
Import & Export Ltd. (“Fujian ”), 10-Civ-1630 (AKH) (S.D.N.Y.), was brought against
defendants in China selling counterfeit goods through the Internet directly to consumers in the
United States. In Fujian, the district court granted an ex parte temporary restraining order,
seizure order, asset restraining order, and domain-name transfer order, later continued by a
preliminary injunction order.
Of course, last week, a bunch of internet companies -- Google, Facebook, Tumblr, Twitter and Yahoo -- filed an amicus brief highlighting how ridiculous the widespread demand is:
Plaintiffs are asking the Court to grant a preliminary injunction not just against
the named Defendants, but also against a wide array of online service providers—from
search engines, to web hosts, to social networking services—and require them to “cease
providing services to the MovieTube Websites and Defendants[.]” None of those
providers is a party to this case, and Plaintiffs make no claim that any of them have
violated the law or play any direct role in the Defendants’ allegedly infringing activities.
Plaintiffs’ effort to bind the entire Internet to a sweeping preliminary injunction
is impermissible. It violates basic principles of due process and oversteps the bounds of
Federal Rule of Civil Procedure 65, which restricts injunctions to parties, their agents,
and those who actively participate in a party’s violations. The proposed order also
ignores the Digital Millennium Copyright Act (“DMCA”), which specifically limits the
injunctive relief that can be imposed on online service providers in copyright cases.
Even if Plaintiffs had named those providers as defendants and obtained a final
judgment against them, the DMCA would not permit the relief that Plaintiffs are asking
for at the outset of their case, where they have not even tried to claim that these
nonparties have acted unlawfully.
We represent Plaintiffs in the above-titled action. We write to inform the Court that after
Plaintiffs filed their Complaint (and presumably in response thereto), Defendants shut down their
infringing websites, and as of today, such websites remain offline. Plaintiffs are no longer
seeking preliminary injunctive relief at this time but will seek permanent relief as soon as
possible. Defendants’ time to answer or otherwise respond is August 19, 2015.
Moreover, because Plaintiffs have withdrawn their motion for preliminary injunctive
relief, the arguments offered by Amici Curiae... in opposition to that motion are
not ripe for consideration and are otherwise inapplicable. Accordingly, Plaintiffs have not
addressed them here. To the extent Amici are requesting what amounts to an advisory opinion,
such a request is improper and should not be entertained.
In short: we had hoped to quietly get a court to pretend SOPA existed so we could point to it as proof that this is perfectly reasonable... but the internet folks spotted it, so we'll just walk away quietly, and hope that next time, those darn internet companies, and those eagle-eyed lawyers at the EFF aren't so quick to spot our plan.
We've argued for quite a long time that treating "pirates" like criminals instead of potential customers is a massive mistake for a whole host of reasons. There's the futility of the legal game, for instance, as well as the possible public relations nightmare that going after the public, even the infringing public, can create. But the best reason to not treat infringers like criminals is because they're often the best actual customers of content out there as well. In study after study, it's shown that a person who engages in some infringement spends more total money on movies, music, and video games than someone who gets everything legit. Pirates, scurvy-laden bastards as they may be, happen to be the creative industries' best customers.
And it turns out it's no different in Australia, where a recent government study bore out the same conclusion: infringers spend more money on content than content-saints.
Consumers who flirt with the morally ambiguous line of content consumption spend more money, according to a survey released by the Australian Department of Communications. Over a three-month period among respondents aged 12 and over, the survey found that those who consumed a mixture of copyright-infringing and non-infringing content spent on average AU$200 on music, AU$118 on video games, AU$92 on movies, and AU$33 on TV content. Consumers who only consumed non-infringing content spent only AU$126 on music, AU$110 on video games, AU$67 on movies, and AU$22 on TV; whereas pure copyright-infringing content consumers spent a mere AU$88 on music, AU$24 on video games, AU$53 on movies, and AU$8 on TV content.
In every market, the sometimes-infringer spends more. In the case of music and movies, the delta between the occasional infringer and the all-legal consumer is huge, much larger than the delta between the all-legal and all-infringement consumers. Video games and television don't show the same delta, but even in those arenas the occasional infringers spent more than the saint. Why? How?
Well, because the occasional infringer infringes because they're a fan, a fan perfectly happy to spend money on scarce goods where spending that money makes complete sense.
However, the survey also found that the majority of spending on music and movies was not on the content items themselves.
"For both music and movies, the majority of the average spend was not from purchases of either digital or physical copies. In the case of music, this primarily consisted of concerts and gigs, and in the case of movies, this primarily consisted of going to the cinema," it said.
And since the advents of the VHS and cassette tapes, that's always been the case. Theaters are about experience and live music for great acts will always be in demand, even if bootleg tapes and pirated DVDs are in hefty supply, which they are. For the content itself, the survey respondents essentially indicated that the juice wasn't worth the squeeze.
A majority of survey respondents said that they would pay for a music subscription service that charged AU$5 per month, and AU$10 per month for a movie subscription service. Only 5 percent of respondents said that nothing would make them stop consuming copyright-infringing content.
In other words, the "everyone just wants everything for free" line the entertainment industries have been pimping for decades is bunk. Instead, the overwhelming majority of customers and potential customers want content on-demand at prices that make sense, in which case they're perfectly willing to fork over the money. And even when they feel the price doesn't make sense, they're still willing to fork over money for things they do value as fans -- even though they may have become fans through pirated content. Either way, the industries win. It's just a matter of how much they want to win. Hint: crying over infringers who spend the most money isn't the optimal response.
Frustratingly, this government study was released roughly a month after Australia passed its version of SOPA, largely at the behest of industry lobbyists armed to the teeth with industry numbers showing industry losses at the hands of these same dastardly pirates who are spending so much money on their products. It sure would have been nice if the government had managed to have access to their own data before passing such draconian legislation, rather than relying on the historically unreliable data from the entertainment industry.